Merrill v. City of Lowell

• Decision Date: 27 November 1920
• Citation: 236 Mass. 463,128 N.E. 862
• Parties: MERRILL v. CITY OF LOWELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

236 Mass. 463

128 N.E. 862

MERRILL

v.CITY OF LOWELL.

Supreme Judicial Court of Massachusetts, Middlesex.

Nov. 27, 1920.

Case Reserved and Report from Superior Court, Middlesex County; Henry A. Kind, Judge.

Action by Margaret W. Merrill against the City of Lowell. On reservation and report without decision to the Supreme Judicial Court. Judgment ordered to be entered for defendant.

J. J. & W. A. Hogan, of Lowell, for plaintiff.

William D. Regan, City Sol., of Lowell, for defendant.

CARROLL, J.

The plaintiff's land was taken November 18, 1915, by the defendant for municipal purposes. She was awarded damages in the sum of $19,650, which she refused to accept and brought a petition for a jury to assess the damages; the petition is now pending. June 24, 1916, the defendant tendered to the plaintiff the amount awarded with interest, which the plaintiff accepted as payment pro tanto, without prejudice to her rights. St. 1904, c. 317. At a meeting of the municipal council of the city of Lowell on December 26, 1916, at which three members were present, it was voted to pay the plaintiff the sum of $2,772.51 in settlement of ‘a cause of action brought by her for damages in the matter of Dummer street taking, said amount being in addition’ to the sum already accepted in payment pro tanto. It was stated in the order, ‘This vote is of urgent necessity for the immediate preservation of the public peace, health and safety.’ At the meeting on December 26, the three members present voted in the affirmative. At the meeting of the municipal council held on January 8, 1917, the treasurer was directed not to pay the sum awarded the plaintiff by vote of December 26, 1916. January 27, 1917, the plaintiff tendered to the city a deed of the land taken, an agreement for judgment and execution in the sum of $2,772.51. The deed and agreement were not accepted. February 16, 1917, the plaintiff brought this action of contract to recover the sum of $2,772.51. On April 26, 1917, the municipal council rescinded the vote of December 26, 1916, at which meeting the four members present voted in the affirmative.

St. 1911, c. 645, § 27, provides that the municipal council of the city of Lowell shall not pass an order, resolution or vote appropriating money in excess of $500, or authorize a contract involving a liability in excess of $500, unless proposed in writing and unless a notice is published in a newspaper not less than one week before its passage, except an order, resolution or vote for the immediate preservation of the public peace, health or safety, which contains a statement of its urgency and is passed by a four-fifths vote. Prior to the meeting of December 26, 1916, the vote ordering payment of $2,772.51 to the plaintiff was not submitted in writing to the municipal council and notice was not published in a newspaper as required by the statute.

A statement of the facts showing the urgency for the immediate preservation of the public peace, health or safety was not contained in the vote. It declared generally that, ‘This vote is of urgent necessity for the immediate preservation of the public peace, health and safety,’ without mentioning the particular facts constituting the emergency. We do not think it necessary, however, to decide whether the absence of this statement of facts rendered the vote invalid. See in this connection Amendments to the Constitution of Massachusetts, art. XLVIII, The Referendum II, Emergency Measures.

The only authority given the municipal council of Lowell to make an appropriation or enter into a contract in excess of $500 without the publicity required by St. 1911, c. 645, § 27, was to preserve the public peace, health or safety, and when the necessity for its preservation was immediate. The authority of the council was defined and limited. If the public health, safety, or peace was not involved, or its immediate preservation was not demanded, then the appropriation of the public money was illegal and the contract cannot be enforced. Green v. Everett, 179 Mass. 147, 60 N. E. 490;Webb Granite Co. v. Worcester, 187 Mass. 385, 73 N. E. 639;United States Drainage & Irrigation Co. v. Medford, 225 Mass. 467, 472, 114 N. E. 734.

The meaning of the words in the statute limiting expenditures in excess of $500 is plain. The Legislature gave the municipal council power and authority to appropriate the public funds in excess of $500 when the occasion demanded immediate action for the public good. The council, as the body intrusted with the responsibility of expending these funds, could do so only in the manner and for the purposes authorized by the statute. The provision requiring publication in a newspaper before making the appropriation was enacted for the benefit of the taxpayers and to protect their money from ill-advised action, and only in the event of some emergency calling for the prompt...